Ah, Griswold. By day 2 of the Great Bork Hearings, the reason he should be confirmed was already obvious: When was the last time the Senate, let alone daytime television, was graced with debate at such a level? When was the last time the ghosts of Griswold v. Connecticut and Shelley v. Kraemer, of Justices Holmes and Frankfurter, were allowed such play in the national consciousness? If this is what Bork does to a room full of politicians, think of what intellectual fiber he could bring to the Supreme Court.
Bork even brought out the best in his opponents. Sens. Biden and Kennedy have rarely been sharper. (The same cannot be said of swing Sen. DeConcini, who appeared befuddled by Bork's answers, like a law student not quite able to follow his professor. And as Bork parried every one of Sen. Metzenbaum's questions, the uncomprehending senator plowed on down his staff-prepared question list, not daring a rebuttal.) Here were Biden and Bork fencing over Griswold, a wonderful 1965 case in which the Supreme Court threw out a law banning the use of contraceptives. It was in honor of Griswold that Justice Douglas invented the right to privacy (later used to smite abortion laws) and in dissent that Justice Black argued, "I like my privacy as well as the next one" but damned (I paraphrase) if I can find a blanket "right of privacy" in the Constitution.
The charm of Griswold is that the law it struck down is so bad. Bork called it "nutty." Black called it "offensive." Justice Stewart called it "uncommonly silly." Which presents a profound constitutional dilemma: What does a judge do when the politicians pass stupid, offensive, reactionary laws? There are two answers. Biden, Kennedy and company (politicians all) say: override the politicians, strike it down, even if you have to grow a right with which to do so. Bork and Black and Stewart say: that would be nice, but it is one of the inconveniences (and protections) of a constitutional system that a judge may not do that.
Both are legitimate positions. I happen to tend toward Biden's, but to call Bork's beyond the bounds of permissible discourse is sheer prejudice. Indeed, Bork's position must be called principled. It takes a principled judge to defend a nutty law, just as it takes a principled civil libertarian to defend a Nazi nut's right to march. Both are led to results they dislike but see no principled way to avoid. Nor are Bork's objections to Douglas's right to privacy eccentric. If it were truly a constitutional right, then heroin laws -- shooting up is an even more "private" act than sex since it requires only one consenting adult -- should be struck down tomorrow.
"That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power," Bork once said, "that is the morality of the jurist." And that is the core of Bork's judicial philosophy. It is an attractive philosophy, with very unattractive results. Unattractive because it does not allow the historical creation of new rights -- abortion rights, minorities' rights to preferential treatment or, in Connecticut in 1965, the right to contraception -- to accommodate a changing culture.
There is no doubt that Bork's narrow, original-intent approach to the Constitution is a minority view. But can one really argue that it is beyond the pale?
That, after all, is the issue. A rough consensus about the criteria for rejecting a Supreme Court nominee has developed around the Bork nomination. Ideology may be considered in the following way: you need not accept the nominee's ideology, only be able to locate it in the American mainstream. That should not mean that it must be middle of the road. It should mean that it not be eccentric or extreme.
When Richard Nixon nominated G. Harrold Carswell to the Supreme Court in 1970, Sen. Roman Hruska, responding to the charge that Carswell was mediocre, opined that "even if he were mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren't they?" To reject Bork because his philosophy is not "moderate" is to apply a political version of the Hruska criterion.
What would more stimulate and invigorate the judicial life of the country: a Bork or a middle-of-the-road mediocrity whose attractiveness is his freedom from the burdens of a judicial philosophy, who is pledged to judge case-by-case for lack of any other intellectual guide, and who has established so meager a public record that his confirmation hearings would necessarily be brief?
Biden and company are worried about the results Justice Bork's decisions would yield. But there are dozens of conservatives, from Sen. Hatch down to the lowliest young conservative with not a thought, and thus not a blot, on his record, who can be guaranteed to produce results identical to Bork's and who could not be denied confirmation. So why the mobilization against Bork? Because none of the others has Bork's mind. That is what makes Bork different, and threatening. If Bork is rejected, it will ultimately be because his opponents fear such an intellect let loose on the court.
If the Supreme Court consisted of a single judge, one could see how Biden and his colleagues could legitimately reject him. But to deny Bork's constitutional view one seat out of nine is to claim that it has no place at the highest level of American judicial discourse. And that is a confession of both judicial narrow-mindedness and intellectual fear.